Canada: Supreme Court Decides That Duty To Consult Does Not Apply To Law-Making Process: Mikisew Cree First Nation v Canada

On October 11, 2018, the Supreme Court of Canada
("SCC") released its decision in Mikisew Cree First
Nation v Canada (Governor General in Council)
("Mikisew Cree").1 A
majority of the Court held that the duty to consult is not
triggered by the development of legislation.

The SCC offered four competing opinions about the scope of the
duty to consult and whether the honour of the Crown applies to the
Legislature. The divided decision indicates that this may be more
of a policy than a legal question. The Court recognises that its
analysis would not apply where existing Land Claim Agreements
require consultation in relation to proposed
legislation.2

Facts

Chief Courtoreille and the Mikisew Cree First Nation
(collectively, the "Mikisew Cree") alleged that the
Omnibus Bills adversely affected their rights to hunt, trap and
fish under Treaty 8.5 The Mikisew Cree applied
to the Federal Court seeking, among other things, a declaration
that the federal Ministers have a duty to consult with the Mikisew
Cree regarding the development and introduction of the Omnibus
Bills.6

Lower Court Decisions

The Federal Court found that the law-making process triggers the
duty to consult and that the Omnibus Bills adversely affected the
Mikisew Cree's established Treaty rights.7
The Federal Court issued a declaration that the Mikisew Cree were
entitled to consultation.8

The Federal Court of Appeal disagreed, and held that the
Federal Courts Act9 barred the Federal Court
from judicially reviewing legislative action.10
The Federal Court of Appeal also found that requiring consultation
during the law-making process would "be impractical" and
would interfere with "Parliament's law making
capacity."11

The Mikisew Cree appealed to the SCC and argued that the:

Federal Court has jurisdiction to review the law-making
process, and

development and introduction of the Omnibus Bills triggered the
duty to consult.

The Mikisew Cree's application raised important questions
for the SCC. Does the honour of the Crown apply to the Legislature?
Do governments trigger the duty to consult when they develop
policy? And what remedies can or should Courts grant if governments
develop legislation that could impact Indigenous rights?

The Supreme Court's Decision

The SCC

unanimously found that the Federal Courts Act does not
permit judicial review of 1parliamentary activities, including the
development of legislation,12 and dismissed the
Mikisew Cree's application,13 and

split on the issue of whether the duty to consult is triggered
where the Crown develops, 2passes or enacts legislation that may
adversely affect Indigenous rights.14

The Duty to Consult

The SCC's decision on the duty to consult is split across
four sets of reasons.

Seven out of nine Justices (a majority) found that the duty to
consult is not triggered by the development of legislation:

Two Justices (a minority) disagreed, and concluded that the duty
to consult is triggered by the development of legislation. The
dissenting opinion was delivered by Justices Abella and
Martin.18

The SCC disagreed on several points:

1 Does "Crown conduct" include the development,
introduction, consideration and 1enactment of legislation?

The duty to consult is triggered by "Crown conduct."
Justice Karakatsanis held that the law-making process does not
constitute Crown conduct.19 Crown conduct
includes "executive conduct and conduct taken on behalf of the
executive,"20 but excludes legislative
conduct, such as the development, passage and enactment of
legislation.21 However, Justice Karakatsanis
clarified that the process of adopting subordinate legislation
(regulations and rules) constitutes executive conduct, and is
therefore subject to the duty to consult.22

Justices Brown and Rowe agreed that Crown conduct excludes the
legislative or parliamentary role of the Canadian
state.23

Justice Abella found that "because the honour of the Crown
infuses the entirety of the government's relationship with
Indigenous peoples, the duty to consult must apply to all exercises
of [government] authority"24 with the
potential to adversely affect s. 35 rights, including legislative
action.25

2 Does applying the duty to consult to the law-making process
conflict with democratic principles?

The SCC considered three democratic principles:

Separation of Powers – The separation of
powers "recognizes that each branch of government 'will be
unable to fulfill its role if it is unduly interfered with by the
others.'"26

Parliamentary Sovereignty –
Parliamentary sovereignty allows Parliament to make or unmake laws
within its constitutional authority.27

The majority of the SCC (Justices Karakatsanis', Justice
Brown's, and Justice Rowe's reasons) agreed that
recognizing a duty to consult during the law-making process would
offend these democratic principles because such recognition
may:

"require courts to improperly trespass onto the
legislature's domain" and supervise the law making
process29

"constrain [Parliament] in pursuing its mandate and
therefore undermine its ability to act as the voice of the
electorate,"30 and

Interfere with Parliament's ability to decide its own
procedure.31

Justice Rowe provided that "Section 35 rights are not
absolute. Like other provisions of the Constitution Act,
1982 it is both supported and confined by broader
constitutional principles."32

Justice Abella disagreed and held that democratic principles
"cannot displace the honour of the Crown... the right of
Aboriginal groups to be consulted on decisions that may adversely
affect their interests is not merely political, but a legal right
with constitutional force."33 Justice
Abella concluded that the Court must "reconcile, not choose
between, protecting the legislative process from judicial
interference and protecting Aboriginal rights from the legislative
process."34 In so doing, Justice Abella
found that Aboriginal rights impose boundaries on Crown
actions.35

3 Would applying the duty to consult to the law-making process
be impractical?

Justices Karakatsanis and Rowe discussed the impracticalities of
imposing a duty to consult during the law-making process. Justice
Rowe stated that the preparation of legislation is a "highly
complex process involving multiple actors across multiple
governments." Justice Rowe considered that "imposing a
duty to consult at this stage could effectively grind the
day-to-day internal operation of government to a
halt."36

Justice Karakatsanis stated that determining the executive steps
of the legislative process to which the duty to consult applies
would be "an enormously difficult
task."37 She also considered that since
changes made to proposed legislation during consultation could be
undone by Parliament, meaningful accommodation of Indigenous
concerns during legislative development may be
limited.38

4 What does the Honour of the Crown require of the Legislature?
4

Justice Karakatsanis concluded that the honour of the Crown
applies whether the Crown is acting in its legislative or executive
capacity.39 However, what the honour of the
Crown requires will depend on the circumstances in which it is
engaged.40 In some circumstances, the honour of
the Crown requires a duty to consult.41

Justice Karakatsanis stated that "simply because the duty
to consult...is inapplicable in the legislative sphere, does not
mean the [Crown] is absolved of its obligation to conduct itself
honourably."42

Justice Abella agreed with Justice Karakatsanis that the honour
of the Crown attaches to both the executive and legislative
branches of government.43

By contrast, Justice Brown and Justice Rowe concluded that the
Crown is a separate entity from the
Legislature;44 therefore, the honour of the
Crown does not bind Parliament.45

5 What remedies are available to Indigenous peoples where
governments develop laws 5that could adversely affect their
rights?

The Mikisew Cree argued that if the development of legislation
cannot be challenged on the basis of the duty to consult,
Indigenous rights "will be subject to inconsistent
protection."46

Justice Karakatsanis affirmed that where enacted
legislation infringes s. 35 rights, Indigenous peoples can
challenge the constitutional validity of the legislation through a
Sparrow claim.47 In determining
whether legislation that infringes a s. 35 right is justified under
the Sparrow framework, the Court may consider whether the
Indigenous group in question was
consulted.48

However, Justice Karakatsanis accepted that "if the effects
of the legislation do not rise to the level of infringement, or if
the rights are merely asserted (and not established), an Aboriginal
group will not be able to successfully challenge the constitutional
validity of the legislation through a Sparrow
claim."49 In such situations, since the
duty to consult does not provide an avenue to challenge the
development of legislation, Indigenous groups would be left without
a remedy.

Where the Sparrow doctrine is inapplicable, Justice
Karakatsanis noted that "other doctrines may be developed to
ensure the consistent protection of s. 35 rights and to give full
effect to the honour of the Crown through review of enacted
legislation."50 For example, "other
doctrines" could address situations where governments
"legislate in a way that effectively removes future Crown
conduct which would otherwise trigger the duty to
consult."51

Justice Brown disagreed that validly enacted and
constitutionally compliant legislation could be declared
inconsistent with the honour of the Crown, and cautioned that
Justice Karakatsanis's approach could "throw this area of
the law into significant uncertainty."52
Justice Rowe added the Sparrow infringement analysis
strongly incentivized governments to consult in developing
legislation.53

Justice Abella stated that the duty to consult provides
"remedies on a reduced threshold [compared to the
Sparrow framework], based on the potential for adverse
effects on a claimed or asserted right."54
If the duty to consult does not apply to legislative action, s. 35
rights-holders are left "vulnerable to the same government
objectives carried out through legislative, rather than executive,
action."55 Justice Abella asserted that
Aboriginal rights required the strong protections provided through
the duty to consult as opposed to a "vague and unenforceable
right to 'honourable
dealing.'"56

The duty to consult does not apply to the law-making process
(although it does apply to the process of adopting subordinate
legislation).

The honour of the Crown may give rise to new doctrines that
address impacts to Indigenous rights where the duty to consult and
Sparrow frameworks do not apply.

Whether or not a duty to consult exists, it is good policy for
governments to consult affected Indigenous groups during the
law-making process.57

In practice, consultation on policy options in preparation of
legislation, and consultation through House and Senate Committees
during law making is often undertaken. While not legally required,
we can expect to see a greater effort to consult with Indigenous
people affected by proposed legislation as a result of this
decision.

47Mikisew Cree at para 43; The
Sparrow framework provides that the Crown cannot infringe
established Aboriginal rights or treaty rights unless it is
"justified." According to the Sparrow framework,
the Crown is "justified" in infringing established
Aboriginal or treaty rights where (a) the Crown has a compelling
and substantial legislative objective and (b) the public benefit
achieved through the infringement is proportionate to any adverse
effect on Aboriginal rights. A key consideration in the
proportionality analysis is whether the Indigenous group was
consulted during the development of the impugned legislation (see
Mikisew Cree at para 77).

48Mikisew Cree at para 48.

49Mikisew Cree at para 43.

50Mikisew Cree at para 45.

51Mikisew Cree at para 46.

52Mikisew Cree at para
104.

53Mikisew Cree at para
155.

54Mikisew Cree at para 79.

55Mikisew Cree at para 79.

56Mikisew Cree at para
84.

57Mikisew Cree at paras 48, 54, 145,
155, 166

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